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05-3677-cr United States v. Benjamin UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2006 5 6 (Argued: February 8, 2007 Decided: September 27, 2007) 7 8 Docket Nos. 05-3677-cr(L), 05-4006-cr(XAP), 05-4009-cr(CON) 9 10

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 11 12 UNITED STATES OF AMERICA, 13 14 Appellee-Cross-Appellant, 15 16 v. 17 18 GREG HIRLIMAN, JIMMY LEON, also known as JIMMY DALE, AMOS KEITH, 19 JEFFREY EVANS, RONALD WILSON, EDWARD INGENITO, also known as 20 BUSTER, JOSEPH SCICCHITANO, CARLOS WIGGINS, JEFF BELLAMY, JOHN 21 BRYANT, SHERRY MARIE BOULA, OMAR T. FERGUSON, JAMIE FRIEL, JAMES 22 V. HAMILTON, also known as BLACK, GARY HANSON, THOMAS JOHNSON, 23 also known as T, KIM KOHL, DAVID SHARP, EARL THOMAS, also known 24 as SLIM, LORRAINE BENJAMIN, SCOTT CRANDALL, SUSAN FISHER, KEVIN 25 MARTINELLI, LAMONT PARKS, TERRI PEARMAN, MICHAEL RHODES, 26 DEMETRIOUS SAYLES, 27 28 Defendants , 29 30 DONALD BENJAMIN, JR., also known as DUCKY, NEAL BENJAMIN, 31 32 Defendants-Appellants-Cross-Appellees
. 33 34

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 35 36 B e f o r e: WINTER, WALKER, and SACK, Circuit Judges
. 37 38 Neal and Donald Benjamin appeal their sentences for various 39 drug-related offenses, entered in the United States District 40 Court for the Western District of New York (Elfvin, Judge). The 41 government cross-appeals, arguing that Judge Elfvin failed BOTH 422

to give notice of his decision to depart from the Sentencing 1 Guidelines and to provide any explanation of his decision to 2 depart, as required by federal statute and by the order of this 3 court ina previous appeal in this matter. Because the district 4 court once again did not explain its reasons for the sentences 5 imposed, we vacate the sentences and remand with instructions 6 that the case be assigned to a different judge for resentencing. 7 JAMES P. KENNEDY, Assistant United 8 States Attorney (Terrance P. Flynn, 9 United States Attorney for the 10 Western District of New York, on 11 the brief), Buffalo, New York, for 12 Appellee-Cross-Appellant
. 13 14 JOHN J. LAVIN, John J. Lavin, P.C., 15 Buffalo, New York, for Defendant16 Appellant-Cross-Appellee Neal 17 Benjamin
. 18 19 VINCENT E. DOYLE III, Connors & 20 Vilardo, LLP, Buffalo, New York, 21 for Defendant-Appellant-Cross22 Appellee Donald Benjamin
. 23 24 WINTER, Circuit Judge : 25 Neal and Donald Benjamin appeal their sentences imposed by 26 Judge Elfvin for various drug related offenses. 1The government 27 cross-appeals, arguing that the district judge violated 18 U.S.C. 28 § 3553 and a direction of this court in a previous appeal of this 29 matter, United States v. Evans , 352 F.3d 65 (2d Cir. 2003), by 30 failing for a second time to give notice of his decision to 31 deviate from the Sentencing Guidelines (“U.S.S.G.”) and to 32 provide an explanation for his non-Guidelines sentences
. 333

Because we agree with the government, we vacate the 1 sentences and remand with instructions that the case be assigned 2 to a different judge for resentencing. 3
BACKGROUND 4 The relevant facts are exceedingly simple. Between 1994 and 5 1997, the Benjamin brothers ran a drug distribution ring in and 6 around Olean, New York, along with dozens of co-conspirators. 7 Id.at 67-68. “The ring dealt in marijuana, cocaine, and crack 8 and employed numerous individuals, including several youngsters 9 under age eighteen.” Id.at 68. 10 The Presentence Investigation Reports (“PSR”) recommended an 11 offense level of 46 for each defendant and a criminal history 12 category of VI, the highest possible level, yielding a range of 13 life imprisonment under the U.S.S.G. Id.at 70. Because none of 14 the individual offenses for which the Benjamins were convicted 15 carried a life sentence, the PSRs invoked U.S.S.G. § 5G1.2(d), 16 which provides that sentences shall be served consecutively up to 17 the guidelines sentence. Thus, the PSRs recommended stacking 18 Donald’s sentences to achieve a 240-year sentence, and Neal’s to 19 produce a 40-year sentence. Id.at 70-71. 20 At sentencing, on April 12, 2002, the district judge 21 accepted the calculations of the PSRs, but departed downwards 22 from the Guidelines, sentencing Donald to three 10-year terms 23 (for a total of 30 years) and Neal to 20 years. Id.The judge 244

provided no coherent explanations for these departures. With 1 regard to Donald’s sentence, the district judge said only “I must 2 have downward departed . . . to get those three segments of ten 3 years.” Id.At 72. As to Neal’s sentence, he said “I would have 4 to assume that I have departed.” Id. 5 The Benjamins and the government appealed. The Benjamins 6 challenged both their convictions and their sentences, while the 7 government argued, inter alia, in its cross-appeal that the 8 district court committed error by not giving notice of a possible 9 departure and by failing to articulate his reasons for departing. 10 We rejected all of the Benjamins’ arguments, in large part by 11 summary order. United States v. Evans , 82 Fed.Appx. 726 (2d Cir. 12 2003). By way of a published accompanying opinion, the panel 13 found that the district judge had “made no findings of fact or 14 conclusions of law justifying [his] departures and thus [left] us 15 at a total loss in reviewing defendants’ sentences.” Evans , 352 16 F.3d at 72. Accordingly, the panel vacated the sentences and 17 remanded for resentencing “in accordance with 18 U.S.C. § 18 3553(c)(2) and Sentencing Guidelines 5K2.0[,]” and “direct[ed] 19 the district court to provide clear notice to both parties of any 20 contemplated departure.” Id. 21 The district court again provided no notice of any intention 22 to depart or otherwise deviate from the advisory Guidelines 23 ranges prior to the resentencing hearings. At Donald’s 245

resentencing, the court heard from the defense and the 1 prosecution, and then announced, “I adhere to that sentence, 360 2 months imprisonment.” D. Benjamin Resentencing Tr. at 23. When 3 the prosecutor asked how the court had arrived at that sentence, 4 the judge said “I’ll write you a letter” and brought the hearing 5 to a close. Id.at 24. Judge Elfvin provided no explanation of 6 his sentence in his written judgment, other than to check boxes 7 indicating that he “adopt[ed] the presentence report and the 8 Guideline[s] application[] without change” but “did not apply the 9 federal sentencing guidelines at all in this case and imposed a 10 discretionary sentence.” 11 A month later, Neal was resentenced. At the outset of the 12 hearing, the defense attorney asked about the letter the district 13 judge had promised to explain Donald’s sentence. In response, 14 the judge asked his courtroom deputy to “give [him] a note to 15 remind [him] about that.” N. Benjamin Resentencing Tr. at 3. 16 According to the government, no such explanatory note has been 17 received. 18 The district court again provided no advance notice of any 19 intention to deviate from the Guidelines prior to Neal’s 20 resentencing. Evidently anticipating the judge’s enigmatic 21 behavior and fearing another overturning of the sentence, Neal’s 22 attorney came to the hearing with a proposed “notice” for the 23 judge to read into the record. The “notice” was a brief summary 246

of several of the factors a sentencing judge is required to 1 consider under § 3553, and read, in full: 2 Notice is hereby given to the government and 3 defendant, Neal Benjamin, that the Court 4 intends to depart from the advisory 5 guidelines sentence for the following 6 reasons: The proposed sentence is sufficient 7 but not greater than necessary to reflect the 8 seriousness of the offense, to promote 9 respect for the law, to provide just 10 punishment for the offense, to protect the 11 public from further crimes of the defendant, 12 to afford adequate deterrence to criminal 13 conduct, and to avoid sentencing disparity. 14 15 Judge Elfvin duly read the “notice” into the record. Id.at 8. 16 The prosecutor objected, suggesting that this did not constitute 17 proper notice. After hearing from the defense and prosecution, 18 the judge announced that “[t]he sentence I impose, Neal, is that 19 you’re going to be sentenced to a period of incarceration of 240 20 months, period,” N. Benjamin Resentencing Tr. at 15, though he 21 once again adopted the calculations of the PSR -- which provided 22 for a 40-year sentence -- in his written judgment. 23 When, as before, the prosecutor pressed the court to explain 24 this departure, defense counsel volunteered that the reasoning 25 was contained in the notice read into the record. The district 26 judge agreed with this suggestion, adding that he had “considered 27 Neal’s case along with his brother’s, and everything together, 28 for the long period of time that the case has been in front of 29 me. I think everything is adequately on the record.” N. 307

Benjamin Resentencing Tr. at 17. In his written judgment, the 1 judge stated that “[t]he Court imposed a non-guideline sentence 2 pursuant to the factors set forth in 18 U.S.C. § 3553 as read 3 into the record at sentencing.” Once again, both sides appealed. 4
DISCUSSION 5 Because of our disposition of the cross-appeal, the 6 sentences must be vacated and the case remanded to another judge 7 for yet another resentencing. We therefore do not address the 8 Benjamins’ claims at this time. 9 Title 18 U.S.C. § 3553(c) requires a sentencing court to 10 state the reasons for imposing a particular sentence. It reads, 11 in relevant part, that “[t]he court, at the time of sentencing, 12 shall state in open court the reasons for its imposition of the 13 particular sentence . . . .” 18 U.S.C. § 3553(c). If the 14 sentence is outside the range described in the Sentencing 15 Guidelines, the court must also provide “the specific reason for 16 the imposition of a sentence different from that described [in 17 the Guidelines], which reasons must also be stated with 18 specificity in the written order of judgment . . . .” Id.§ 19 3553(c)(2). 20 While United States v. Booker, 543 U.S. 220 (2005), rendered 21 the Sentencing Guidelines advisory rather than mandatory, itdid 22 not alter a sentencing judge’s obligations under Section 3553(c). 23 “[T]he Supreme Court left unimpaired Section 3553(c), which 248

requires a district court to ‘state in open court the reasons for 1 its imposition of the particular sentence’ and . . . state in 2 writing ‘with specificity’ the reasons for imposing a sentence 3 outside the calculated Guidelines range.” United States v. 4 Crosby, 397 F.3d 103, 116 (2d Cir. 2005) (quoting 18 U.S.C. § 5 3553(c)). A court’s “failure to comply ‘with the general 6 provisions of § 3553(c) . . . regarding [the explanation of 7 reasons for] departures from recommended sentencing ranges’ 8 constitutes ‘plain error,’ even when the length of the resulting 9 sentence would otherwise be reasonable.” United States v. 10
Fuller, 426 F.3d 556, 565 (2d Cir. 2005) (quoting United States 11 v. Lewis , 424 F.3d 239, 246 (2d Cir. 2005)). 2 12 The plain fact is that, with regard to Donald, the district 13 judge, although accepting the PSR calculations, once again failed 14 to give notice of a possible deviation and provided no 15 explanation whatsoever for his decision to impose a non16 Guidelines sentence. When the prosecutor asked for an 17 explanation, he simply replied “I’ll write you a letter.” D. 18 Benjamin Resentencing Tr. at 24. Even if the judge had written 19 the promised letter -- which he did not -- it would not have 20 satisfied his obligation to “state in open court the reasons” for 21 imposing the particular sentence. 18 U.S.C. § 3553(c). Nor did 22 the district judge explain his decision in the written judgment, 23 which simply stated that he “adopt[ed] the presentence report and 249

the Guideline[s] application[] without change” but “did not apply 1 the federal sentencing guidelines at all in this case and imposed 2 a discretionary sentence.” “Stating no reasons at all plainly 3 falls short of the requirement to state reasons that is set forth 4 in § 3553(c), no matter what the required level of specificity 5 may be.” Lewis , 424 F.3d at 245 (internal quotation marks 6 omitted). As a result, Donald’s sentence must be vacated. 7 Neal’s sentencing was as perfunctory as Donald’s. It was 8 not preceded by a notice of a possible deviation or accompanied 9 by a statement of reasons, save for the reading -- without 10 evident embarrassment -- of the defense-prepared “notice,” which 11 was provided at the hearing and was simply a statement of several 12 of the factors in Section 3553(a). Although once again accepting 13 the PSR calculations, the judge then imposed a sentence 20 years 14 below the Guidelines recommendation. Quite apart from the fact 15 that the “notice,” written by defense counsel before the 16 resentence was known, was hardly the product of the judge’s own 17 thinking, it made no attempt to explain how the individual 18 Section 3553(a) factors applied to Neal’s particular case and led 19 to the sentence imposed. As before, the district judge “made no 20 findings of fact or conclusions of law justifying [his] 21 departures and thus leaves us at a total loss in reviewing 22
defendants’ sentences.” Evans , 352 F.3d at 72. 23 The district judge’s behavior compels us to order that the 2410

case be assigned to a different judge on remand. In general, 1 “reassignment to another judge may be advisable in order to avoid 2 an exercise in futility (in which) the Court is merely marching 3 up the hill only to march right down again.” United States v. 4 Robin, 553 F.2d 8, 11 (2d Cir. 1977) (en banc) (internal 5 quotation marks omitted). 6 Reassignments because of the failure of the district judge 7 to impose a proper sentence are uncommon, but it is not 8 unprecedented for a case to be remanded to a different judge 9 after a district court has twice used an improper sentencing 10 procedure. See United States v. Brown, 470 F.2d 285, 288-89 (2d 11 Cir. 1972). We note, moreover, that reassignments are not 12 uncommon in the case of Judge Elfvin. This is the third case of 13 reassignment in less than two years based on his failure to give 14 notice of, and an explanation for, a departure in the original 15 sentencing proceeding and on a remand. See United States v. 16 Toohey, 448 F.3d 542 (2d Cir. 2006), and United States v. 17 Sicurella, 2006 U.S.App. LEXIS 13546 (2d Cir. May 23, 2006) 18 (unpublished order). In Toohey, we had remanded twice because 19 Judge Elfvin had not explained a sentence of probation. 448 F.3d 20 at 543. At the third sentencing hearing, he explained that he 21 had imposed probation because of his personal relationship with 22 the defendant when both were practicing law. Id.at 544. On the 23 next appeal, we then remanded to a different judge. Id.at 546. 2411

In Sicurella, Judge Elfvin refused to explain his reasons for 1 imposing the sentence, stating on the second remand: “Upon 2 reflection here and with further reflection to come in the 3 future, I’m going to continue the sentence of 70 months. I will 4 give it further reflection and if I change my mind, I’ll let 5 everyone know.” 2006 U.S.App. LEXIS 13546 at *3 n.2. With 6 little comment, the Sicurellapanel determined that this 7 “explanation” failed to satisfy the requirements of § 3553(a) and 8 (c), and remanded, ordering reassignment to another judge. 9 This is, therefore, the third case in two years in which 10 Judge Elfvin failed in the initial sentencing proceeding to 11 comply with the requirements of notice and explanation for the 12 imposition of a non-Guideslines sentence and then, on remand, 13 failed to follow a direction of this court to comply with those 14 requirements. This pattern of behavior is disturbing evidence of 15 willfulness. The need to remove Judge Elfvin from this case 16 being self-evident, we order reassignment to a different judge. 17
CONCLUSION 18 For the foregoing reasons, the sentencing orders of the 19 district court are vacated and the case is remanded with 20 instructions that it be assigned to a new judge for resentencing. 21 22 23
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1. Donald Benjamin was convicted of (1) one count of conspiracy to possess with intent to distribute and conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 as it relates to 21 U.S.C. § 841(a)(1); (2) five substantive distribution counts, in violation of 21 U.S.C. § 841(a)(1); and (3) one count of using a minor to distribute controlled substances in violation of 21 U.S.C. § 861(a)(1) and (2). Neal Benjamin was convicted of one count of the same conspiracy offense and one count of possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Evans , 352 F.3d at 68.

2. Nor did Bookeralter the requirement that a district court provide parties with notice of possible departures and variances from the advisory Guidelines ranges. SeeFed. R. Crim. P. 32(h). Although we did not decide until after Donald and Neal Benjamin were resentenced that the notice requirement applied equally to non-Guidelines sentences as to departures, United States v. Anati , 457 F.3d 233, 236-37 (2d Cir. 2006), the district court could have been under no misapprehensions regarding its obligation to inform the parties of any intent to impose a sentence outside the applicable Guidelines ranges in light of our FOOTNOTES 1 213

admonitions in Evans , see Evans , 352 F.3d at 72.